Recent sexual assault law

[6-000] Recent sexual assault law on JIRS

The Research and Sentencing Division of the Judicial Commission of NSW publishes summaries of recently enacted criminal legislation, relevant case law and other important sentencing developments on the Recent Law & Announcements page of its online Judicial Information Research System (JIRS).

2018 Sexual assault cases

Evidence

  • 15/01/2019 — Evidence Act 1995, ss 97 , 101(2) — tendency evidence — child sexual assault offences — judge erred by relying on dissenting reasons in CCA judgment of McPhillamy v R [2017] NSWCCA 130 when High Court judgment reserved — judge should have applied principles in Hughes v The Queen (2017) 92 ALJR 52 and other decided cases — incorrect to conclude probative value of evidence outweighed by prejudicial effect — appropriate directions could address prejudice — Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293

  • 14/11/2018 — Evidence Act 1995, s 97(1)(b) — tendency evidence — historical sexual offences — majority of NSW CCA erred by finding evidence of prior sexual offending against different complainants committed a decade earlier admissible as tendency evidence — evidence did not meet threshold requirement of significant probative value in s 97(1)(b) — features of previous conduct and present offending insufficient to link two together — McPhillamy v The Queen [2018] HCA 52

  • 31/10/2018 — Evidence Act 1929 (SA), s 34P(2) — context evidence — historical child sexual assault — SA Court of Appeal correct to conclude evidence of uncharged acts to explain otherwise implausible aspects of complainant’s evidence admissible — probative value of evidence substantially outweighed any prejudicial effect on appellant — directions adequately explained use jury could make of context evidence — no substantial miscarriage of justice — Johnson v The Queen (2018) 92 ALJR 1018; [2018] HCA 48

  • 18/10/2018 — Evidence — Criminal Procedure Act 2009 (Vic), s 381(1) — admissibility of complainant’s recorded evidence from previous trial — Victorian provision broadly similar to s 306I, Criminal Procedure Act 1986 — Victorian Court of Appeal’s approach to determining question of complainant’s willingness to give evidence incorrect — this determination a question of degree to be determined by reference to other factors in s 381(1) — Court erred by concluding evidence of complaint not admissible as a previous representation within Evidence Act 2008 (Vic), s 66 (identical to Evidence Act 1995, s 66) because not fresh in the memory — further error to conclude probative value of evidence of complaint outweighed by danger of unfair prejudice under Evidence Act, s 137 (identical to Evidence Act 1995, s 137) — The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40

  • 26/09/2018 — Directions — Evidence Act 2008 (Vic), ss 97, 135, 137 (identical to Evidence Act 1995, ss 97, 135, 137) — tendency evidence — multiple sexual offences committed against single complainant — suggested jury directions in single complainant sexual offence cases where evidence of uncharged acts admitted as tendency evidence — judge should not ordinarily direct jury they may only act on evidence of uncharged acts if satisfied they are proved beyond reasonable doubt — NSW practice of directing in these terms should not continue — The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40

  • 05/07/2018 — Evidence Act 1995, ss 97, 100(1), 192(2) — tendency evidence — application to dispense with notice requirements — judge erred by treating lack of sufficient explanation for non-compliance as mandatory and determinative of application — additional error to treat perceived need to correct Crown's systemic non-compliance as relevant to “interests of justice” — failure to refer to matters relevant under s 192(2) — R v AC [2018] NSWCCA 130

  • 7/06/2018 — Evidence Act 1995, ss 97, 101 — tendency evidence — judge did not err by ruling tendency evidence admissible and refusing separate trial application — possibility of concoction or contamination relevant in determining whether evidence has significant probative value — observations by Button J in GM v R [2016] NSWCCA 78 that NSWCCA jurisprudence continues to apply approved — test remains whether there are competing inferences that deprive the evidence of significant probative value — BM v R [2017] NSWCCA 253

  • 25/05/2018 — Evidence Act 1995, ss 55, 137 — context evidence — no error in judge’s finding that evidence of one uncharged act was relevant to fact in issue — a single act is capable of, but faces higher hurdle in, meeting test for relevance as context evidence — no error in application of s 137 — evidence was of significant probative value — risk of tendency reasoning was only danger of unfair prejudice and could be addressed by jury directions — CA v R [2017] NSWCCA 324

  • 6/05/2018 — Criminal Procedure Act 1986, ss 298(1), 299B, 299D — sexual assault communications privilege — judge erroneously found power to order production of documents under s 299B irrelevant — finding that documents sought did not have “substantial probative value” nonetheless correct — Rohan v R [2018] NSWCCA 89

  • 16/01/2018 — Directions — Evidence Act 1995, s 165B — forensic disadvantage resulting from delay in complaint — Crimes Act 1900, s 66A — sexual intercourse with person under 10 — judge did not err by failing to warn jury about consequences of delay — “significant forensic disadvantage” in s 165B requires examination of consequences of delay not its extent — lack of DNA evidence caused by delay not usually evidence within s 165B(2) — Binns v R [2017] NSWCCA 280

Sentencing

  • 11/01/2019 — Sentencing — Crimes Act 1900, s 66C — aggravated sexual intercourse with child between 10 and 14 — under authority — victim 12 years old — applicant 21-year-old babysitter — judge’s findings regarding objective seriousness of offences not reasonably open — aggravating circumstance had to be analysed in context of range of aggravating circumstances prescribed by s 66C(5) — Dawkins v R [2018] NSWCCA 278

  • 20/08/2018 — Sentencing — multiple child sex offences — judge indicated same term for numerous offences — no error in assessment of objective seriousness of each offence — judge adopted discriminating rather than “broad-brush” approach — little variation in objective seriousness for many of the offences — no requirement for judge to rank offences according to scale of seriousness — Rampe v R [2018] NSWCCA 163

  • 20/06/2018 — Sentencing — Crimes Act 1900, ss 91G, 91K(3), 91L(3) — voyeurism offences — eight victims aged 12 to 16 years — offences committed over 7-year period — aggregate sentence of 6 years not manifestly excessive — offences involved serious violation of privacy — fact victims unaware of filming, images not published, and no physical contact involved did not reduce seriousness of offences — objective gravity not assessed by absence of features which would elevate offence to different category of seriousness or different type of offence — TM v R [2018] NSWCCA 88

  • 13/06/2018 — Sentencing — Crimes Act 1900, s 66A — sexual intercourse with child under 10 — juvenile offender — judge erred by finding Crown‘s concession, that alternative to full-time custody was within range, was “contrary to sentencing principle” — serious sexual offending by young children does not necessarily result in full-time custody — additional error for judge not to consider alternatives to full-time custody — Campbell v R [2018] NSWCCA 87

  • 29/01/2018 — Sentencing — Crimes Act 1900, ss 73, 76 (both rep) — historical child sex offences — judge did not allow own memory of historical sentencing patterns and practices to dictate sentences — doubtful whether “judicial memory” should be used to establish historical sentencing patterns — settled propositions about changes in sentencing practices for child sexual assault offences — MC v R [2017] NSWCCA 316

  • 29/01/2018 — Sentencing — Criminal Code (Cth), ss 272.8(2), 272.9(2) — sex offences against children outside Australia — relevant sentencing factors and principles — judge erred in approach to totality — overall sentence failed to reflect harm done to each child — when applying totality principle where separate victims involved, temporal proximity of offences not determinative — DPP (Cth) v Beattie [2017] NSWCCA 301

  • 28/03/2018 — Crimes Act 1900, s 91D(1)(b) — participate as client in act of child prostitution — factors relevant to assessment of objective seriousness discussed — judge erred by finding offending below mid "and possibly towards lower end" of range of seriousness — type of sexual service provided relevant to objective seriousness given broad definition under s 91C — aggregate sentence manifestly inadequate — R v Darwich [2018] NSWCCA 46

Offences

  • 3/07/2018 — Crimes Act 1900, ss 66EB, 66C(1) — procure child for unlawful sexual activity — father arranged marriage of 12-year old daughter — judge did not err by finding “procure” in s 66EB(2) means “to cause or bring about” — sentencing — sentence not excessive given very serious nature of offending — fact applicant motivated by religious beliefs rather than sexual gratification did not ameliorate sentence — ZA v R [2018] NSWCCA 116

  • 31/05/2018 — Offences — Criminal Code (Cth), ss 473.1, 474.19 — meaning of “child pornography material” — judge correct not to direct jury that verdicts of acquittal should be entered — appellant’s communications drafted in future tense fell within scope of definition in s 473.1 — definition and offence provisions extend to descriptions of past, present and future sexual activity — Innes v R [2018] NSWCCA 90

  • 07/03/2018 — Crimes Act 1900, s 61D (rep) — historical sexual intercourse without consent — Crown case presented on basis appellant reckless as to consent — not unreasonable for jury to conclude Crown had proved appellant was reckless about whether complainant consented — complainant’s age and sexual ignorance relevant to question of consent — judge’s directions correctly identified how consent to be proved — Morgan v R [2017] NSWCCA 269

  • 11/01/2018 — Crimes Act 1900, ss 91FB, 91G(1), 91H(2) — child pornography offences — “private parts” in s 91FB refers to unclothed genitals and breasts with a visible degree of sexual development — extended definition in s 91I does not apply to s 91FB — judge not required to make express findings as to objective seriousness of each offence — Turner v R [2017] NSWCCA 304

Court Suppression and Non-publication Orders Act 2010

  • 14/08/2018 — Court Suppression and Non-publication Orders Act 2010, ss 8, 14 — appeal against revocation of interim non-publication order — judge did not err in approach to determining whether order in the public interest — accurate reporting of sexual assault trial shows applicant not criminally involved — no prospect of applicant being humiliated or embarrassed by publication — legislation does not operate to prevent mere discomfit to witness — Qiangdong Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159

Procedure

  • 24/06/2018 — Procedure — judge-alone trial — adequacy of reasons — Criminal Law Consolidation Act 1935 (SA), s 50 — persistent sexual exploitation of a child — judge’s reasons sufficiently identified and disclosed basis for concluding two or more acts of sexual exploitation proved — adequacy of reasons depends on issues in particular case — DL v The Queen (2018) 92 ALJR 636; [2018] HCA 26

Sexual Assault Communications Privilege

  • 23/01/2019 — Criminal Procedure Act 1986, ss 298, 299B, 299D — sexual assault communications privilege — judge not precluded from exercising independent discretion when determining whether to grant access to protected confidence documents where another judge previously granted leave for subpoena to produce — judge required to consider s 299D when determining whether access should be granted — satisfying conditions in s 299B(3) necessary, but not sufficient, requirement for access — PPC v Stylianou [2018] NSWCCA 300

  • 30/09/2015 — Criminal Appeal Act, s 5F(3AA(c)) — Criminal Procedure Act 1986, ss 296 , 299B — sexual assault communications privilege — "counselling communication" in s 296(1) must involve counselling provided by a counsellor — onus is on person asserting the privilege to show communication privileged — documents in this case were not "counselling communications" within s 296 — focused and specific evidence required to ground claim for privilege — statements by judge explaining each ruling in relation to the privilege were sufficient having regard to the circumstances — ER v Khan [2015] NSWCCA 230

Directions

  • 01/10/2018 — Directions — historical indecent assault — judge erred by addressing matters associated with complainant’s credibility in a way contrary to agreement between parties as to conduct of trial — directions suggested jury need not consider reasonable possibilities put by defence arising from evidence in trial — re-direction did not cure error — SY v R [2018] NSWCCA 6

  • 30/10/2018 — Directions — miscarriage of justice occasioned by judge’s directions responding to jury question about counsel’s questioning of complainant — directions erroneously left jury in a position to assess appellant’s credibility on basis of their determination of a false issue — capacity of jury to fairly and properly assess appellant’s credibility seriously impaired — Llewellyn v R [2011] NSWCCA 66

2018 Sexual assault legislation

  • 30/11/2018 — Justice Legislation Amendment Act (No 3) 2018 — amends Crimes Act 1900 — adds new aggravating circumstance to aggravated sexual assault in s 61J — amends Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively — new provisions and offences with respect to sensitive evidence — commenced on 28 November 2018 (s 2, see LW 26 November 2018) except relevantly Sch 1.2 [1]–[3], 1.4 [1] and [4], 1.17 [1] and [4], 1.20 which commence on proclamation — Sch 1.11 [1] and [2] commence on 17 December 2018 — Second Reading Speech — Explanatory Note

  • 30/11/2018 — Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, certain provisions, commenced on 1 December 2018 (LW 30.11.2018) — these provisions restructure and modernise sexual offences in Crimes Act 1900, Pt 3, Div 10 — new s 80AF permits prosecution when there is uncertainty about when child sexual offence occurred — the new consent provision, s 61HE, expands the definition of consent to “sexual activity” which includes sexual intercourse, sexual touching or a sexual act (s 61HE(11)) and applies to offences under ss 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF: s 61HE(1) and it is no longer limited, as previously, to “sexual intercourse” — the existing consent provision, s 61HA, is repealed — new s 80AG is inserted and is aimed at decriminalising certain acts engaged in by children for offences against ss 66C(3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above 14 years old and the age difference between the alleged victim and the accused is no more than 2 years — new s 293A is inserted into the Criminal Procedure Act 1986 to enable judges to give jury directions to address difference in accounts given by complainant — Second Reading Speech — Explanatory Note

  • 31/08/2018 — Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 — introduces new offences of failing to reduce/remove risk of child abuse and concealing child abuse offence under ss 43B, 316A Crimes Act 1900 respectively — amends s 21A and inserts s 25AA in Crimes (Sentencing Procedure) Act 1999 — s 25AA requires courts to sentence for child sexual offences according to sentence patterns and practice at time of sentence — these amendments commenced 31 August 2018 (s 2, LW 31.08.2018) — Second Reading Speech — Explanatory Note

Note:

See JIRS Recent Law for summaries of all items in this list. Content on JIRS is only available to NSW judicial officers and other JIRS subscribers.

[6-050] Other publications

Judicial Officers’ Bulletin

  • I Nash, “Use of sexual assault communications privilege in sexual assault trials” (2015) 27(3) JOB 21

  • P McClellan, “Adults surviving child abuse: the work of the Royal Commission” (2014) 26(11) JOB 95

  • RA Hulme, “After Muldrock — sentencing for standard non-parole period offences in NSW” (2012) 24(10) JOB 81

  • M Ierace SC, “Judge-alone trials” (2012) 24(9) JOB 73

  • H Donnelly, “Assessing harm to the victim in sentencing proceedings” (2012) 24(6) JOB 45

  • H Donnelly, “The diminished role of standard non-parole periods” (2012) 24(1) JOB 1

  • P van de Zandt, “The sexual assault communications privilege” (2011) 23(11) JOB 100

  • P Mizzi, “The sentencing reforms — balancing causes and consequences of offending with community safety” (2018) 30 JOB 73

Criminal Trials Court Bench BookSpecial Bulletin 30 — relationship evidence in sexual assault cases — Norman v R [2012] NSWCCA 230 — SKA v R [2012] NSWCCA 205 — recent law item (posted 23/11/2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Offenders sentenced to prison in 2010 for child sex offences (see child_sex_offences_imprisonment), 2014

NSW Bureau of Crime Statistics & Research (BOCSAR)Progress of sexual offences through the NSW criminal justice system: 2006–2010, 2012

NSW Bureau of Crime Statistics & Research (BOCSAR)Sentencing snapshot: sexual assault, 2009–2010 — Bureau Brief, Issue Paper 72, 2011 (revised January 2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Sentencing snapshot: child sexual assault, 2009–2010 — Bureau Brief, Issue Paper 68, 2011 (revised January 2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Re-offending in NSW, Bureau Brief, Issue Paper No 56, 2011 (revised January 2012)recent law item (posted 20/5/2011)

NSW Bureau of Crime Statistics & Research (BOCSAR)Does the Custody-based Intensive Treatment (CUBIT) program for sex offenders reduce re-offending? — Evaluation Report, Number 193, 2016

Protective custody — paper by Domenic Pezzano, Superintendent Operations Branch, Corrective Services NSW — “Information for the ODPP/Courts on options for inmates who request Protective Custody: Limited Association and Non-Association” (revised December 2010) — procedure when inmate placed in protective custody — what placement options are available for inmates and what security ratings are required for specific Correctional Centres — what programs are available for inmates in protective custody — recent law item (posted 25/3/2011)

[6-100] Government reviews and papers

In September 2017, the NSW Government prepared a discussion paper that identified issues and posed questions about possible options for child sexual abuse law reform. The paper considered the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in its Criminal Justice Report, released in August 2017, and the recommendations of the NSW Parliament's Joint Select Committee on Sentencing of Child Sexual Assault Offenders: see Final Report of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders at https://www.parliament.nsw.gov.au/committees/DBAssets/InquiryReport/ReportAcrobat/5741/Final%20Report%20of%20the%20Joint%20Select%20Committee%20on%20Sent.PDF. The purpose of the discussion paper is to examine child sexual offences in NSW to simplify the current framework, revise current offences and identify whether any new offences should be created to fill any gaps in the existing framework. See Discussion paper: Strengthening child sexual abuse laws in NSW at www.justice.nsw.gov.au/justicepolicy/Documents/strengthening-child-sexual-abuse-laws.pdf